R v WAA

Case [2008] QCA 87 11 April 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v WAA [2008] QCA 87

PARTIES:

R
v
WAA
(appellant)

FILE NO/S:

CA No 265 of 2007
DC No 48 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

11 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2008

JUDGES:

McMurdo P, Muir JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction dismissed

2.   Appeal against sentence allowed

3.   For count 1, the appellant be sentenced to three years imprisonment

For each of counts 4, 5, 6 and 7 the appellant be sentenced to 18 months imprisonment4.

The terms of imprisonment be served concurrently5.

The period of 251 days of pre-sentence custody from 18 September 2003 to and including 30 October 2003 and from 8 August 2005 to and including 4 March 2006 to be deemed time served in relation to each of the above sentences6.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICTS – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of maintaining a sexual relationship with a child under 12 years and four counts of indecent treatment of a child under 12 years – where the appellant was acquitted of two counts of indecent treatment of a child under 12 years and two counts of unlawful carnal knowledge of a child under 12 years – where the appellant was the complainant’s stepsisters’ grandfather – where there were material inconsistencies in the complainant’s evidence in relation to some counts – where there was a recorded pretext call suggesting the existence of a sexual relationship – whether the differing verdicts of guilty and not guilty were reconcilable based on the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the primary judge gave directions to the jury as to the assessment of credibility in relation to the appellant and the complainant – where the primary judge gave directions as to the separate consideration of evidence in respect of each charge – whether the primary judge’s directions were adequate – whether there was a miscarriage of justice due to the absence of a Markuleski direction

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – where the primary judge found the sexual relationship had been maintained for 14 months – where the evidence showed the sexual relationship had only been maintained for about nine months – where the appellant is in poor health – whether the process of calculating the sentence miscarried – whether the sentencing discretion should be exercised afresh

R v CAQ [1999] QCA 197, followed
R v Ford [2006] QCA 142, discussed
R v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v WAA

Details

AGLC: R v WAA [2008] QCA 87
Case: [2008] QCA 87
Decision Date: 11 April 2008

CaseChat Overview and Summary

The appeal before the court was from a conviction by the appellant, WAA, on one count of maintaining a sexual relationship with a child under 12 years and four counts of indecent treatment of a child under 12 years. The appellant was acquitted of two counts of indecent treatment and two counts of unlawful carnal knowledge of a child under 12 years. The complainant was the appellant’s stepsister. The appeal was against both the conviction and the sentence, with particular focus on the adequacy of the primary judge’s directions to the jury and the calculation of the sentence.

The legal issues before the court were whether the verdicts of guilty and not guilty on different counts were reconcilable based on the evidence, whether the primary judge's directions to the jury regarding the assessment of credibility and the separate consideration of evidence for each charge were adequate, and whether there was a miscarriage of justice due to the absence of a direction akin to Markuleski. Additionally, the court considered whether the sentence calculation miscarried and if the sentencing discretion should be exercised afresh.

The court found that while there were inconsistencies in the complainant's evidence, the differing verdicts were consistent with the evidence presented. The primary judge's directions to the jury were deemed adequate, and no miscarriage of justice was found due to the absence of a Markuleski direction. However, the court found that the primary judge miscalculated the duration of the sexual relationship, which affected the sentence. Consequently, the appeal against the conviction was dismissed, but the appeal against the sentence was allowed. The court ordered a new sentence of three years imprisonment for the first count and 18 months for each of the other four counts, to be served concurrently, with the period of pre-sentence custody to be deemed time served.

The court's final orders were that the appeal against the conviction was dismissed, the appeal against the sentence was allowed, and the appellant was to be sentenced to three years imprisonment for the first count and 18 months for each of the remaining counts, to be served concurrently. The pre-sentence custody period was to be deemed time served in relation to the new sentences.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Appeal against sentence allowed

3. For count 1, the appellant be sentenced to three years imprisonment

For each of counts 4, 5, 6 and 7 the appellant be sentenced to 18 months imprisonment4.

The terms of imprisonment be served concurrently5.

The period of 251 days of pre-sentence custody from 18 September 2003 to and including 30 October 2003 and from 8 August 2005 to and including 4 March 2006 to be deemed time served in relation to each of the above sentences6.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v WAA [2008] QCA 87

Most Recent Citation

R v WAC [2008] QCA 151

Cases citing this decision · 9 of 9 shown

R v Jao
[2025] QCA 44 Para 26

…rcise of the sentencing discretion. As the sentencing judge observed, sentencing is not a mathematical exercise. [11] R v BCG [2012] QCA 167; R v WAA [2008] QCA 87; R v CCY [2023] QCA 49; R v Cunningham [2008] QCA 289.…
R v CCY
[2023] QCA 49 Para 24

…personal circumstances, supported a sentence of no more than five years imprisonment. [61] R v FAK [2016] QCA 306; R v BCG [2012] QCA 167; R v WAA [2008] QCA 87; R v NR [2014] QCA 159; R v MDG [2020] QCA 113; R v Miller [2021] QCA 126; R v Johnsone (a pseudonym) [2020] QCA 243; R v Margaritis [2013] QCA 401; R…
R v SDS
[2022] QCA 106 Para 24

…osed or not disturbed in circumstances which might indicate that the present case involved a manifestly excessive sentence. [114][2013] QCA 288. [115][2008] QCA 87. [116][2007] QCA 103.…
R v AAR
[2014] QCA 20 Para 1

…v PAP ,[12] R v WAA [13] and R v GY [14] demonstrated that the sentence of five years imprisonment was manifestly excessive. [12][2013] QCA 288. [13][2008] QCA 87. [14][2007] QCA 103.…
R v Winchester
[2013] QCA 166 Para 1

…The applicant relied upon the sentence imposed on appeal in R v WAA [2008] QCA 87 of three years imprisonment. The complainant in that case was about 10 or 11 years old, the charged period was nine months, and the offender was the complainant’s stepsisters’ grandfather. Those circumstances were very serious, but…
R v BCG
[2012] QCA 167 Para 1

…His Honour was referred to cases including R v WAA [2008] QCA 87 which was potentially especially helpful because the prisoner in that case was convicted at trial. The offending in that case was rather more serious than in the present. It is summarized as follows in the reasons for judgment of Muir JA:…
R v Walden
[2010] QCA 13

…QCA 197, distinguished R v Cunningham [2008] QCA 289, distinguished R v MAG [2004] QCA 397, considered R v WAA [2008] QCA 87, distinguished R v WAB [2008] QCA 107, distinguished R v W [1998] QCA 343 followed Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited COUNSEL: A Vasta QC for the applicant (pro bon…
R v Cunningham
[2008] QCA 289

…es Act 1992 (Qld), s 160D R v AS [2004] QCA 220, cited R v C [2000] QCA 385, considered R v O [2001] QCA 40, considered R v WAA [2008] QCA 87, considered COUNSEL: S Kissick for the applicant R Pointing for the respondent SOLICITORS: Bradley Munt & Co for the applicant Director of Public Prosecutions (Queensland)…
R v WAC
[2008] QCA 151 Para 1

…An appeal based on the lack of a direction along the lines of that given in Markuleski was unsuccessful in R v WAA [2008] QCA 87, because sufficient and extensive directions on the assessment of the credibility of the complainant had otherwise been given by the trial judge (at [40]).…

View all 9 citing cases →

Cases cited in this decision · 10 of 10 shown

R v GY
[2007] QCA 103 Para 1

…bout six to 14 years. The conduct included the appellant’s rubbing his penis against the complainant’s vulva sometimes achieving ejaculation. [14][2007] QCA 103.…
R v Ford
[2006] QCA 142 Para 1

…f the complainant’s evidence relating to that count[12]. [8][2003] VSCA 200; [2003] 8 VR 50. [9][2004] WASCA 266; [2004] 150 A Crim 82. [10][2006] QCA 142 at [127]. [11][2006] QCA 142 at [128]. [12][2006] QCA 142 at [136].…
R v Murphy
[2006] QCA 14

…[7][2006] QCA 14…
R v LR
[2005] QCA 368

…03, discussed R v Markuleski (2001) 52 NSWLR 82, considered R v LR [2006] 1 Qd R 435; [2005] QCA 368, considered R v S [2003] 1 Qd R 76; [2001] QCA 531, discussed COUNSEL: G P Long SC for the appellant M J Copley for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions…
Lefroy v The Queen
[2004] WASCA 266 Para 1

…beyond reasonable doubt of the reliability of the complainant’s evidence relating to that count[12]. [8][2003] VSCA 200; [2003] 8 VR 50. [9][2004] WASCA 266; [2004] 150 A Crim 82. [10][2006] QCA 142 at [127]. [11][2006] QCA 142 at [128]. [12][2006] QCA 142 at [136].…
R v PMT
[2003] VSCA 200 Para 1

…r count only if they were satisfied beyond reasonable doubt of the reliability of the complainant’s evidence relating to that count[12]. [8][2003] VSCA 200; [2003] 8 VR 50. [9][2004] WASCA 266; [2004] 150 A Crim 82. [10][2006] QCA 142 at [127]. [11][2006] QCA 142 at [128]. [12][2006] QCA 142 at [136].…
R v Simard
[2001] QCA 531 Para 1

…ith which the other members of the court agreed, remarked that the sentence was “well within the appropriate sentencing range.”[16] [15][2001] QCA 531. [16][2001] QCA 531 at [12].…
R v Markuleski
[2001] NSWCCA 290

…ed R v Ford [2006] QCA 142, discussed R v GY [2007] QCA 103, discussed R v Markuleski (2001) 52 NSWLR 82, considered R v LR [2006] 1 Qd R 435; [2005] QCA 368, considered R v S [2003] 1 Qd R 76; [2001] QCA 531, discussed COUNSEL: G P Long SC for the appellant M J Copley for the respondent SOLICITORS: Legal Aid Queensl…
R v CAQ
[1999] QCA 197 Para 1

…the vicinity of her vulva on some 15 occasions. On two occasions, the applicant had placed the complainant’s hand on his erect penis. [13] R v CAQ [1999] QCA 197.…
Mackenzie v The Queen
[1996] HCA 35 Para 1

…sons for the verdicts and I am therefore not persuaded that the verdicts are “an affront to logic and common sense”.[17] [17] Mackenzie v R (1996) 190 CLR 348 at 356.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v WAA [2008] QCA 87
PARTIES:	R v WAA (appellant)
FILE NO/S:	CA No 265 of 2007 DC No 48 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	11 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2008
JUDGES:	McMurdo P, Muir JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Appeal against sentence allowed 3. For count 1, the appellant be sentenced to three years imprisonment For each of counts 4, 5, 6 and 7 the appellant be sentenced to 18 months imprisonment4. The terms of imprisonment be served concurrently5. The period of 251 days of pre-sentence custody from 18 September 2003 to and including 30 October 2003 and from 8 August 2005 to and including 4 March 2006 to be deemed time served in relation to each of the above sentences6.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICTS – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of maintaining a sexual relationship with a child under 12 years and four counts of indecent treatment of a child under 12 years – where the appellant was acquitted of two counts of indecent treatment of a child under 12 years and two counts of unlawful carnal knowledge of a child under 12 years – where the appellant was the complainant’s stepsisters’ grandfather – where there were material inconsistencies in the complainant’s evidence in relation to some counts – where there was a recorded pretext call suggesting the existence of a sexual relationship – whether the differing verdicts of guilty and not guilty were reconcilable based on the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – where the primary judge gave directions to the jury as to the assessment of credibility in relation to the appellant and the complainant – where the primary judge gave directions as to the separate consideration of evidence in respect of each charge – whether the primary judge’s directions were adequate – whether there was a miscarriage of justice due to the absence of a Markuleski direction CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – where the primary judge found the sexual relationship had been maintained for 14 months – where the evidence showed the sexual relationship had only been maintained for about nine months – where the appellant is in poor health – whether the process of calculating the sentence miscarried – whether the sentencing discretion should be exercised afresh R v CAQ [1999] QCA 197, followed R v Ford [2006] QCA 142, discussed R v…